Category Archives: Uncategorized

Disagree? Sure, Why Not?

What do you expect?  Occasionally (ahem), I take a position here with which someone disagrees. Hard to imagine, I know, but it happens. And contrary to popular opinion, it’s fine by me.  No rational person expects everyone to agree with them, or to agree with every view held.  People I hold in high regard disagree with me at times. People I don’t hold in high regard disagree with me at times as well.

It’s fine. It doesn’t hurt my feelings. It doesn’t make me angry that you disagree.

But what exactly do you think I am going to do about it?  There are times when someone will post a comment disagreeing with me, and I realize they are right and I’m wrong. Not often, but it happens.  Almost invariably, they offer a well-reasoned point and, upon reflection, the merit of their reasoning prevails.

So why not you? Not every argument made here changes my mind. There are often two (or more) valid perspectives to an issue, and just because you have a different view, supported by valid reasons, doesn’t mean that anyone, including me, is compelled to adopt your argument. Yes, you have a point. No, it doesn’t make me abandon mine in favor of yours. Continue reading →

The Trial Tax: Worse Than You Thought

When University of Pennsylvania lawprof David Abrams announced his research, it made news.  After all, it purported to be an empirical study that contradicted not only the accepted wisdom, but the experience of every criminal defense lawyer ever.  The trial tax was a myth.

Comes now (or relatively recently at least) David Abrams from Penn with an article that slays the sacred cow of the trial penalty by providing, you know, data. And the data is the best kind of data because inasmuch as it’s true, it is SURPRISING data. Specifically, Abrams argues that based on the study he performed. the data supports the view that in fact there’s a trial discount not a trial penalty.

Surprising isn’t the word for it. Shocking? Stunning? Astounding?  How about wrong?

Last year David Abrams, Penn, stunned the criminal law world with a study concluding that defendants actually receive shorter sentences at trial than they do for pleading guilty. Rather than “penalizing” those who exercise their right to trial, we actually punish those who plead guilty more harshly, turning decades of plea bargaining debates on their head.

Abrams was wrong, and he’s not the only one.

Continue reading →

Did Gary Ostrow Hit Bottom? Enter Patrick Zarrelli @Kidchronic32 (Update)

It happened again. When you think a desperate lawyer has finally realized that he can’t behave like trash online and will mend his ways, he manages to find a new, as yet unplumbed depth of poor choices.  Florida lawyer, Gary Ostrow, has had his struggles with some very bad personal choices.

But if Patrick Zarrelli is any indication, then Ostrow has gone from very bad to monumentally idiotic. Zarrelli claims to be handling Ostrow’s reputation management, which is apparently his latest effort to make a buck following the crash and burn of his curious attempt to wear big boy pants by publishing something called the South Florida Chronicle. One disaster foretells the next.

The South Florida Chronicle, a monthly straight magazine that was infrequently distributed in South Florida, has bit the dust.

Its owner, Patrick Zarelli, also known as ‘Kid Chronic,’ announced Saturday they have stopped publishing. Its last issue was a combined June/July, product, awkward for a monthly, but consistent with their amorphous Facebook theme that they publish, “when we feel like it.”

‘Kid Chronic’ had bragged that he posted 4,000 blogs with “2.5 million views,” which was “all in day’s work.”

With one failure firmly in hand, Kid Chronic doubles down: Continue reading →

Cross: Radley Balko, The Agitator

Oct. 29, 2015 (Mimesis Law) — Ed. Note: Scott Greenfield crosses Radley Balko, Washington Post columnist at The Watch and author of Rise of the Warrior Cop: The Militarization of America’s Police Forces.

Q. You did one year of law school before walking away. What did you figure out that the rest of us didn’t?

A. I’m glad I went, and I’m glad I dropped out. I think both were necessary. I loved the intellectual rigor of law school. And those first year courses have been incredibly valuable in my reporting. I think every journalist should take the first year law school classes in property, criminal law, constitutional law, and torts. But I knew I didn’t want to be a lawyer before I went. I enrolled mostly because I was curious, and because I wasn’t happy with my job at the time.
Those would be acceptable reasons if it didn’t cost $40K per year. My advice: Go to law school if you’re certain you want to be an attorney, or if someone else is paying for it. Otherwise, don’t.
Q. You’ve worn your libertarian politics on your sleeve, all while being finely tuned to the issue of criminal justice. Was there any pushback from the more conservative libertarian side to your being concerned with abusive cops, over-criminalization and puppycide when conservative libertarians were still being “tough on crime”?
A. Not really. I mean, I’ve been criticized by conservatives, but mostly from holdout law-and-order types. When talking to or writing for conservatives, I try to emphasize the point that cops and prosecutors are government employees. The fact that they’re doing a job you happen to think is necessary doesn’t mean they’re immune to the public choice problems that affect any other government worker — corruption of power, perverse incentives, mission creep, turf wars, and so on. The main difference is that with cops and prosecutors, the stakes are much higher. So they actually require more oversight, transparency, and accountability. I think more conservative intellectuals are getting that. Unfortunately, they’re often drowned out by all the Fox News-Chris Christie-style demagoguery.
As for libertarians, I’d say most, nearly all agree with me on these issues. I’ve received nothing but positive feedback from other libertarians in the decade or so that I’ve been writing about this stuff. I think until the last several years, with the exception of the drug war, libertarians have been far too quiet about some of these issues. Part of that I think is because these issues just didn’t affect them personally — which is true of most people. But that’s no longer the case. Reason does some of the best criminal justice reporting anywhere. And Cato people have been really vocal on issues like police brutality, prosecutor misconduct, sentencing, etc.
Q. Before you were writing for big league media, Huffington Post and now the Washington Post, you were just the Agitator. How did you like being a blogger versus one of those fancy-pants writers with a blue check next to your twitter bio?
A. The biggest change I guess is in what I write about. Back when I had a smaller readership, I’d write about just about anything — my personal life, topics upon which I wasn’t really qualified to have an informed opinion. I sometimes cringe at some of the stuff I used to blog about. So I guess I’m more focused now. Probably more professional.
One big difference now is how I get stories. Early in my career I’d have to hunt them down. Now, it’s more about sorting through all the tips and leads people send me, and figuring out which ones are worth pursuing. Tips from defense attorneys almost always check out. They’re not going to waste time contacting a journalist unless they’re really angry about a case. Tips from wives and girlfriends of inmates are the least reliable. I actually once reached out to a guy in prison after getting a long email from his girlfriend protesting his innocence. He said, “No, I did it. I love that woman, but she’s just trying to get me out.” Lesson learned.
Also, sources return my calls, now.
Q. Puppycide. If you didn’t coin the word, you certainly made it a household word, and it definitely struck a chord.  Why? What is it about dogs?
A. We have a natural suspicion of anyone who runs afoul of the criminal justice system. Except in really egregious cases, I think most people assume that if you get shot by a cop, you probably had it coming. But we don’t think that about dogs. Even when a dog is angry, it’s just being a dog.
I’ve heard people make the point that we get angry about dog shootings because we care more about dogs than we do about people. Maybe there’s something to that. But I also think the dog shooting phenomenon is symptomatic of the larger problem. Older and retired cops I’ve interviewed over the years are bewildered by it. One retired cop I interviewed for the book said he’d never seen or heard of a cop shooting a dog over the course of his entire career. He’s mortified at how often it happens today. I think it demonstrates how officer safety has become the highest priority in policing. The fear of a dog bite now justifies the use of lethal force, even if it puts people nearby at risk. And it’s entirely subjective. If a cop says he was afraid of the dog, the shooting is deemed justified, no matter how irrational that fear may have been. Most police departments also offer very little training in how to interact with dogs, or how to deal with them in ways other than killing them.
So there’s a deference to the police account of the event. There’s a premium on officer safety, often at the expense of public safety. There’s little to no training in de-escalation. This should all sound familiar.
Q. While puppycide pulled the heartstrings, you made a habit of pointing out police misconduct and abuse involving human beings for years before reform got on anyone’s agenda. Why did it take so long? What happened now that made a difference?
A. Because it was mostly happening to people who don’t have a voice. It’s telling that the first state to pass any sort of SWAT oversight bill passed that bill only after a botched SWAT raid on the mayor of a small town. When a member of the political class was affected, the political class took action.
I think the national movement on police reform is due primarily to two developments: First, police and prosecutor misconduct is finally starting to affect people who have a platform or some political power. Second, thanks to cell phone cameras and social media, the communities that have been dealing with these problems all along finally have a way to get the rest of us to pay attention.
Q. Your book, “Rise of the Warrior Cop,” was (as I wrote in my review) a seminal work on how we got from Sheriff Andy in Mayberry to SWAT teams, body armor and police departments with tanks. Was it inevitable from Nixon’s presidency forward? When did the public forget that cops were supposed to be the people we could turn to in crisis?
A. Thanks for the compliment. As I pointed out in the book, it’s important to remember that the policies that gave us more militarized police forces came at a time when crime rates were soaring. Nixon came to power in an era where people frequently saw rioting on television, when homicide rates were through the roof. I don’t think those policies made us safer. In the book I profile Jerry Wilson, a very progressive police chief in D.C. in the early 1970s who refused to adopt policies like no-knock raids and other aggressive police tactics. Crime dropped in D.C. during his tenure even as it was going up across the country.
But those policies were in response to something that was real. The problem of course is that when the crime rate drops again, we don’t repeal all those policies we passed out of fear. We don’t even make an effort to assess which ones worked and which ones didn’t. (Or at least not until only recently.) We just wait for the next crisis, then pass more laws that give police and prosecutors more power. It’s what the historian Robert Higgs calls the ratchet effect.
That’s why these stories speculating about the soaring crime rate are so harmful and irresponsible. First, it isn’t even at all clear that the crime rate is going up. But even if it is, it at worst is back to levels it was five or six years ago — levels we were excited about at the time. To report this stuff without that context poisons the discussion of reform.
Q.  In your book, you seem to have developed a surprising rapport with many in the law enforcement community. Did it change your view of police?  Did you become more forgiving of their foibles?  Did you come to understand the First Rule of Policing?
A. I’m sure there are lots of law enforcement officials out there who would disagree with you about my rapport with them. But I did interview lots of current and former police officers and law enforcement officials for the book. I thought it was important to get their perspective. And yes, that definitely colored my own perspective.
I do think it can be too easy to simply rail against cops as the enemy.  Yes, there are of course bad cops out there. And there’s a problem with the culture of policing. It’s hard to think of any profession more defensive, tightly-knit, and psychologically isolated than law enforcement. That’s not just bad for the communities where cops work, it’s bad for cops themselves. Imagine a job in which you drive around all day in a neighborhood that doesn’t particularly welcome you, and in which you only interact with other human beings to confront them, accuse them, or in response to conflict. That’s a pretty miserable work life. It also makes it a lot more difficult to do your job.
But this is all due to bad policy. Reactionary policing is the result of policies that grew out of the police professionalism movement. Stop-and-frisk, the overuse of informants, ubiquitous SWAT raids, aggressive enforcement of petty crimes and misdemeanors, and other problems that create such bad blood in many communities — these are all policies. They’re policies that can be changed. Even cultural issues like the “First Rule of Policing” can be addressed with better policies. Even something as seemingly benign as recruiting videos can have a big impact — you’ll attract a very different set of recruits when you pitch policing as public service than when you pitch the job as “getting the bad guys.”
It’s natural to want to shame and punish police officers who beat up a suspect, shoot too quickly, and commit other misconduct. But it’s far more productive if we can figure out how to curtail misconduct in the first place.
Q.  You have also been highly critical of junk science, particularly bite mark analysis and the coroners who love it. What got you started down this path?
A. When I was reporting on the Cory Maye case, I was struck by how powerful the testimony from the medical examiner was in convincing the jury that Maye was lying. It got me curious, about that particular medical examiner, and about expert testimony in general. It isn’t that all forensic science is junk, but too much of it is. And even the fields that have some value are usually vastly overstated in court. I don’t think most people realize just how little science is behind most expert testimony that’s passed off as scientific. It’s just jaw dropping to me that we’ve sent people to prison, sometimes to death row, based on the assertion of self-proclaimed experts whose methodology is not more scientific than palm reading or Tarot cards. I mean, if you say that according to your analysis, the defendant is the only person on the planet who could have left those bite marks or dropped that hair, the defendant is sent to prison based on your expertise, and then is later proven innocent, I would think that ought to be enough to forever disqualify you as an expert. But that isn’t what happens.
Even with some of the more legitimate fields of forensics, you have huge problems with cognitive bias and misplaced incentives. I mean, in some states, the crime lab analysts ultimately report to the prosecutor. In other states, it’s the state police or the attorney general. Even the most conscientious analyst is going to have problems remaining objective if the person who does his performance reviews is also the person who needs his help to win convictions. It seems like such an obvious thing. And yet we get scandal after scandal in these crime labs, and very little changes.
Q.  Given your one year of law school, you have a pretty good grasp of law and the complexity of legal issues involved in the various “solutions” to the myriad problems with the system. Do you wish now you had finished law school? Do you ever wish you could experience what it’s like being a criminal defense lawyer or prosecutor?
A. As I wrote earlier, I’m glad I went to law school, and I’m glad I quit. I don’t think I’d have the temperament or political outlook to be a prosecutor. I admire criminal defense lawyers, but I’m sometimes amazed at how they retain their sanity. Not for me. I love what I do, and it’s what I’m best suited to do. It’s a pretty lucky thing to do what you love for a living.
Q. Having been the unofficial chronicler of police abuse and misconduct, if you had a chance to give a lecture to a room full of cops, what would you tell them?
A. That’s a flattering description. I actually have given a lecture to a room full of cops, on a couple of occasions. But in the spirit of your question, I think the thing policing today needs most is empathy. Earlier this year I interviewed former Baltimore police officer Michael Wood. The thing I found most moving about his revelatory moment is that it was the result of him simply watching the residents of Baltimore’s high-crime areas for long periods of time while serving on a drug unit. For the first time, he saw them as people, not as potential threats, or possible criminals, or problems to be addressed. It was seeing them take their kids to school, run errands, go to work, do the same day-to-day things we all do.
That’s why the drug war and the trend toward more militarized police has been so destructive. There’s a reason why governments dehumanize an enemy before going to war. In a real war, empathy is the last thing you want to encourage. But of course policing is far removed from soldiering. Or at least it should be. We don’t ask police to obliterate foreign armies. We ask them to protect our rights.
And yet we’ve trained police officers to see themselves as soldiers, that it’s them against everyone else. We constantly tell cops that they’re under fire, that there’s a threat around every corner. We’ve had a couple generations of political leaders dehumanize drug users, drug dealers, and anyone who finds themselves caught up in the criminal justice system.
We need cops to see themselves as a part of the communities they serve. We need those communities to see cops that way, too. But we’ve embraced policies and rhetoric that make both of those things next to impossible.

The Hanlon’s Razor Defense

On retrial after a 10-2 hung jury, Madison, Alabama police officer Eric Parker has focused his defense on its core issue: Sureshbhai Patel had it coming to him.

The first trial of Officer Eric Parker ended in a hung jury last month. This time both sides focused much of their opening arguments on the actions of the victim, Sureshbhai Patel, in the moments before the takedown.

Defense attorney Robert Tuten this time told the jury that the escalation of force was largely the fault of Patel.

“When you come to the U.S. we expect you to follow our laws and speak our language,” said Tuten. “Mr. Patel bears as much responsibility for this as anyone.”

Follow our laws? Well, sure. Not that being Indian and walking in a white neighborhood in Alabama is specifically a crime, but that’s where the second condition comes into play: speak our language. Continue reading →

Skippy, The Fairy Tale Lawyer

When bar exam passage fell like a rock last year, fingers were pointed all over the place. This year was worse, but it appears the blame has now been squarely placed on the admission of students unqualified to become lawyers.

At least two studies, including one this year that examined admissions exam scores from 2000 to 2011, have concluded that scores on the test, administered by the Law School Admission Council, closely track later bar passage rates.

[Kyle] McEntee of Law School Transparency, a graduate of Vanderbilt University Law School, said his group’s recent study showed that many schools were admitting students whose lack of legal aptitude made them vulnerable to failing the bar. And, at the same time, they are incurring six-figure student debt that will weigh them down in the future.

So blame the students for wanting to become lawyers? Blame the law schools for having empty seats to fill, salaries to be paid and new buildings to be built?  Blame the bar exam for being a barrier to entry when there are people who can’t afford lawyers but still need representation?  Blame technology for being worthless unhelpful in solving any problem? Blame society for refusing to accept the premise that if smart students can’t earn a decent living as a lawyer, they’re going elsewhere? Continue reading →

Mike George Fighting Ghosts And Phantoms

A constant lament is that the judiciary has a decided lack of criminal defense lawyers, which tends to limit the breadth of experience of judges to prosecutors and Biglaw types.  This isn’t to say that former criminal defense lawyers necessarily make good judges; they’re no better or worse than anyone else, and many inexplicably overcompensate for their past by being particularly harsh.

Yet, the question of why criminal defense lawyers can’t seem to get on the bench is easy. They have histories that are easily used against them. We represent people accused of crimes. We represent people who are guilty of committing crimes. Oftentimes, really nasty crimes.  That’s the job, and it’s our duty to do so zealously.

Mike George is running for the Pennsylvania Supreme Court.  So naturally, Philly.com has outed him for having used a “gay panic” defense.

“HIKER MURDER SUSPECT ARRESTED;’MOUNTAIN MAN’ IS FOUND ON FARM,” read a May 25, 1988, Daily News headline.

“A TIME OF TERROR WHEN SHOTS RANG OUT, HIKER TESTIFIES,” the Inquirer wrote on Jun 24, 1988. Continue reading →

Apple’s EULA Gives The Government A Backdoor

The only thing stopping the government from getting inside a meth defendant’s iPhone 5s running iOS7 was that it was locked, and the government not only wanted it unlocked, but wanted Apple to give it up. That was the situation brought to Magistrate Judge James Orenstein.

Apple, on its part, said “no.” Yay, Apple? Not quite, since it had a history of being compliant with the government.

Saritha Komatireddy, a Brooklyn federal prosecutor, pointed out that Apple’s decision to fight this search warrant is a “stunning reversal” from the company’s cooperation with law enforcement in the past. Since 2008, Apple has received at least 70 court orders of a similar nature and complied with all of them, a sign that these are routine requests that Apple processes, she said.

Among the arguments proffered by Apple against its cooperation was that it would hurt its reputation with consumers, who (if it didn’t fight this effort) would perceive it as not protecting their privacy. Orenstein noted the curious shift of position: Continue reading →

Schools Have Rules: Caught On Video Edition

The video of a girl at Spring Valley High School in South Carolina, first spread in a twit by Shaun King, being violently taken down by Richland County sheriff’s deputy Ben Fields, went viral.  Talk about a school resource, officer.

After all, she was disruptive.  Carlos Miller at Photography is Not a Crime provides thorough coverage of what happened and why, together with Fields’ lengthy history of “issues” with violence toward students. Continue reading →

The Nassau County Legal Aid Society Fiasco

It’s been a while since Ken Womble left his first job as a public defender for the Nassau County Legal Aid Society to go to Brooklyn, but the lingering anger and pain stayed with him. Until he let it out in this extraordinary Fault Lines exposé.

Upon arrival, the public defender is handed a list with the names of criminal defendants who must be arraigned that day along with some of the Penal Law charges each one is alleged to have violated. This is the totality of information the public defender receives before heading down to the basement cells to meet and interview his new clients.

The utterly ineffectual management at the Nassau County Legal Aid Society has not taken this lying down (more lounging with a slight, but still quite comfortable, incline). They have created a tool to assist their attorneys with the impossible task of interviewing upwards of 50 clients without any valuable information. A card.

The story only gets worse, with public defenders interviewing clients at the bars of mass holding cells, without having in hand the complaints or rap sheets, with no time to speak to defendants, no less their families to enable them to prepare for arraignment. Needless to say, a defendant who doesn’t get out is monumentally more likely to lose, to plead out, than one who does, making arraignment one of the most critical phases of the process. Continue reading →